Canada: Amendments To US Criminal Procedure May Threaten The Privacy Of Canadians

The explosion of modern communications technology is
increasingly connecting Canadians to the world abroad. Geographical
boundaries and distances are no longer as significant as they once
were. Today, our phones, the device most of us carry in our
pockets, enables us to access our private and confidential
information from anywhere in the world, at any time. This same
digital interconnectedness, however, makes our information
vulnerable to hackers and other criminal enterprises. Indeed, for
all its miraculous connectivity and convenience, this brave new
world presents unprecedented challenges.

Like never before, lawmakers are having to grapple with the
tension between safeguarding our privacy on the one hand, and
maintaining our security on the other. Canadians entrust lawmakers,
as part of our democratic society, to seek a delicate balance
– allowing law enforcement to do its job while preventing
undue intrusion into our private affairs. Crucially, if we disagree
with their approach, we are free to voice our objections at the
ballot box.

Canadian law, however, applies only within Canadian borders. And
as cybersecurity becomes more of concern, hackers may not be the
only parties interested in Canadians' private information. If
foreign governments enact laws effectively granting their agents
access to this information, even in limited circumstances,
Canadians have little say in the matter.

Recent amendments to Rule 41 of the United States'
Federal Rules of Criminal Procedure may do just that. On
December 1, 2016, changes came into effect that significantly
broaden American federal law enforcement's ability to access
– or 'hack' into – people's private
computers, cellphones, and other devices outside of their local and
national jurisdictions. This has caused much consternation south of
the border. Should Canadians also be concerned?

What is Rule 41?

The Federal Rules of Criminal Procedure, as the name
implies, govern the procedural conduct of federal criminal
prosecutions. Rule 41 addresses how magistrate judges issue
warrants for searches and seizures, to law enforcement.

Historically, judges' authority to issue such warrants was
geographically limited – search warrants generally had to
specify a particular person or thing, within a particular
jurisdiction. Under the old Rule 41, a court could not issue a
warrant for searches outside their district – that is, an
extraterritorial warrant – unless one of four criteria was
satisfied:

(1) the property is within the jurisdiction but may be moved out
of the jurisdiction before the warrant is executed; (2) the
property is part of an investigation of domestic or international
terrorism; (3) tracking devices are used which can be monitored
outside the jurisdiction if installed within the jurisdiction; or
(4) the property is located in a U.S. territory or U.S. diplomatic
or consular mission.1

Where the target's location is simply unknown, an
extraterritorial warrant was not possible. (This was famously
upheld in 2013 to reject granting such a warrant in In re Warrant to Search A Computer at Premises
Unknown, frustrating a federal investigation into an
online child pornography ring.) In all cases, before and after the
amendments, there must be 'probable cause' that evidence of
criminal activity will be found.

Among other things, this territorial restriction was meant to
prevent "forum shopping", whereby law enforcement could
pick and choose between different judges in different districts and
select one from which they expect a more sympathetic ear.

What's New?

The new amendments are meant to equip federal authorities with
new tools for conducting investigations in the internet age. There
is certainly some cause for this. Anonymity on the web is readily
achievable, and makes it easier to hide perpetrators of criminal
activity. It also makes it harder for investigators to gain the
requisite warrant to search what is, often, an unknown device in an
unknown location.

The amendments mean that a judge, in a
district where crime-related activity has taken place, can
authorize law enforcement to,

...use remote access to search electronic storage media and to
seize or copy electronically stored information located within or
outside that district if:

[the location of the media or
information] has been concealed through technological means;
or

in an investigation of [computer
fraud and related activity], the media are protected computers that
have been damaged without authorization and are located in five or
more districts. [my emphasis]

While Senator Wyden's concerns are directed at his Americans
constituents, the fundamental rights of Canadians are also at
play.

A central purpose of these changes is to facilitate searches of
devices the location of which has been concealed, such as those
using a Virtual Private Network (VPN) or other anonymity networks.
One criticism is that this will necessarily involve searches of
innocent peoples' computers, because the software that conceals
a target's location will often lead investigators
'through' these other devices en route to their end
targets. These innocent devices may be anywhere in the world. This
may mean compromising the security, and certainly the privacy, of
innocent Canadians.

Aside from these innocent parties, a Canadian may turn out to be
the ultimate target of the warrant. Even if they are guilty, the
prospect of Canadians being subject to American laws will be
profoundly unsettling to many. Democracy is predicated on the
legitimate power of the people, alone, to govern themselves; if
Canadians do not control the laws under which their privacy and
security can be undermined, this basic principle is undercut.

Insofar as Canadians might be affected, the relations between
our society and that of our closest ally and trading-partner, the
United States, also risk being strained. The friendship between
Canada and the US rests on a strong foundation of shared interests,
values, and history. Nonetheless, these amendments engage
fundamental concerns – for democratic accountability, for
privacy, for security – which certainly have the potential to
impassion the public.

Whatever risks Canadians may or may not face, the potential for
unintended consequences must be acknowledged before it can be
resolved. The conversation has already started, and it is surely
far from over.

In early June, the Government of Canada came to its senses by suspending the provision of Canada's Anti-Spam Legislation ("CASL") that would have enabled a private right of action to be brought as of July 1, 2017.

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